Terrorism is the New Treason

 

349px-Pasaporte-euaJoining a terrorist organization is illegal on several levels, as is waging war against the United States or murdering and maiming its citizens in the name of jihad (or any other cause). If you don’t believe me, here’s a list of 77 people — mostly US citizens — who’ve been charged in connection with joining the Islamic State. If that’s not convincing, I’d recommend a field trip to ADX Florence, where you can ask to speak with any of the dozen or so convicted jihadis living there, including American citizens Dzhokhar Tsarnaev, Faisal Shahzad, and Ahmed Omar Abu Ali. It probably won’t work, but it may be instructive and I gather the area’s pretty.

Whether we are enforcing these laws adequately, doing our best to catch and deter terrorists before they commit criminal acts, or whether any of these laws require reform are all worthy topics, but we seem to have no shortage of means of prosecuting suspected terrorists (nor should we). That’s why it’s so indefensible for Sen. Ted Cruz to champion a bill that, on top of all this, makes it far easier for the federal government to strip terror suspects of their citizenship. As Cruz put it in one of the debates last month:

I understand why Donald made the comments he did and I understand why Americans are feeling frustrated and scared and angry when we have a president who refuses to acknowledge the threat we face and even worse, who acts as an apologist for radical Islamic terrorism.

I think what we need is a commander in chief who is focused like a laser on keeping this country safe and on defeating radical Islamic terrorism. What should we do? First, we should pass the Expatriate Terrorist Act, legislation I’ve introduced that says if an American goes and joins ISIS and wages jihad against America, that you forfeit your citizenship and you can not come in on a passport.

This is troublesome at many levels. First, it’s all but impossible to imagine a circumstance where there’s sufficient evidence to justify stripping a citizen of his constitutional protections, but insufficient evidence to put out a warrant for his arrest. Again, supporting al Qaeda or the Islamic State is very illegal.

Second, it sets a new — and very bad precedent — regarding rights in general and citizenship in particular. As Gabriel Malor writes in National Review:

[C]itizenship is not a mere privilege. It is a right specifically protected by the Constitution. Congress cannot simply decide that individuals lose their citizenship when they commit certain acts. Rather, to strip a person’s citizenship requires that the government prove not only that he committed an act deemed expatriating by Congress but that he did so knowingly and voluntarily and with the intent to relinquish his citizenship. In the words of Justice White, writing for the Supreme Court when this issue was settled decades ago, “in the last analysis, expatriation depends on the will of the citizen rather than on the will of Congress and its assessment of his conduct.”

As such, Shikha Dalmia argues that it would throw open the door to the very sort of Star Chamber-like abuses the Framers wanted to deny the federal government:

Say the Justice Department informs the State Department that it suspects some Americans of being involved in a listed terrorist group in a way that signals they intended to relinquish their citizenship. Basically, the State Department would use some procedure not specified in the bill to verify that suspicion. If it’s satisfied, it would issue certificates to these Americans that their passport and citizenship had been revoked.

If they are out of the country when this happens, they would presumably be barred from returning home, something that would force them to live in another country as stateless residents, possibly illegally. If they tried to re-enter America, they would be detained. But if they are already home, they’d be stateless residents whom the government could likely detain at will. If they are expatriated when abroad, the only appeal that the law extends, notes Niskanen Center’s David Bier, is to the very State Department that took away their citizenship in the first place, and only if there is substantial new evidence.

The scariest part of the bill is that without due process or a trial or the presumption of innocence, many innocent Americans would be condemned without having any opportunity to refute the evidence against them. The government can accuse them of whatever it wants on whatever grounds it likes without challenge. This is the kind of thing that passes for justice in the Islamic Republic of Iran.

Whereas Sen. Marco Rubio has a lot to answer for his involvement in the Gang of Eight Bill — and still hasn’t been adequately held to account on it — Cruz’s involvement here strikes me as even worse. Rubio can try to plead naïveté and confusion (I don’t think that really works, but he can try). But this is a short, relatively simple bill proposed by a successful attorney who’s made fidelity to the Constitution one of the major planks of his campaign.

He should know better.

There are 14 comments.

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  1. David Carroll Thatcher
    David Carroll
    @DavidCarroll

    The enactment seems virtually useless, at least with respect to stripping someone of citizenship involuntarily, because it says,

    A person who is a national of the United States whether by birth or naturalization, shall lose his or her nationality by voluntarily performing any of the following acts with the intention of relinquishing United States nationality:  [List of acts follows.][Emphasis mine.]

    If the person joins the terrorist organization, or provides it material aid, without the intention of relinquishing United States nationality, the person’s citizenship is theoretically safe.  The burden of proof will be on the government to show the person’s subjective intention.

    That seems awfully difficult to do, although the person will be put to significant hassle and expense defending the person’s citizenship.

    • #1
  2. ctlaw Coolidge
    ctlaw
    @ctlaw

    Under existing precedent, actual involuntary stripping of citizenship probably takes as much as a capital conviction for treason or conspiracy to commit murder would. I’d much rather execute someone than leave him alive to plot from abroad using his knowledge of the US against us.

    As you point out, the arrest warrant standard (whether for a capital crime or something much less) addresses the coming back in on a passport problem.

    • #2
  3. Tuck Inactive
    Tuck
    @Tuck

    Tom Meyer, Ed.: He should know better.

    Agreed.  “Act of treason”, for instance, is defined in the Constitution.  That’s a pretty high bar, it shouldn’t be lowered.

    • #3
  4. Susan Quinn Contributor
    Susan Quinn
    @SusanQuinn

    Tuck: Agreed. “Act of treason”, for instance, is defined in the Constitution. That’s a pretty high bar, it shouldn’t be lowered.

    Maybe I should know this, but does a person lose his or her citizenship for acts of treason as identified in the Constitution?

    • #4
  5. Byron Horatio Inactive
    Byron Horatio
    @ByronHoratio

    It does seem like a pointless exercise. I’m all for trying jihadists with treason, and doing so vigorously. I suspect what would happen under this law is what is happening in Australia and Europe, where the governments confiscate passports and prosecute people for fighting AGAINST the Islamic State.

    • #5
  6. Umbra Fractus Inactive
    Umbra Fractus
    @UmbraFractus

    As far as I know even convicted traitors are not stripped of their citizenship.

    • #6
  7. ctlaw Coolidge
    ctlaw
    @ctlaw

    Umbra Fractus:As far as I know even convicted traitors are not stripped of their citizenship.

    It’s a capital crime.

    • #7
  8. Umbra Fractus Inactive
    Umbra Fractus
    @UmbraFractus

    ctlaw:

    Umbra Fractus:As far as I know even convicted traitors are not stripped of their citizenship.

    It’s a capital crime.

    That’s not the same thing.

    • #8
  9. Rodin Member
    Rodin
    @Rodin

    Yes, the canceling of the passport seems to be symbolic. Obviously if you have evidence that someone has left the US to join ISIS they are subject to arrest and detention upon their attempt to reenter the country whether on a valid passport or not. Since we already provide due process protections to anyone, citizen or not, charged under our legal system the loss of citizenship does not deprive the individual of due process. There is existing precedence for canceling someone’s citizenship when they swear loyalty to a foreign power, which presumably is occurring with those who see ISIS as a caliphate. So the legislation does not seem to do anything that is not already possible.

    • #9
  10. Tuck Inactive
    Tuck
    @Tuck

    Umbra Fractus:

    ctlaw:

    Umbra Fractus:As far as I know even convicted traitors are not stripped of their citizenship.

    It’s a capital crime.

    That’s not the same thing.

    LOL.  Although citizenship is effectively revoked when you’re dead. ;)

    • #10
  11. Tuck Inactive
    Tuck
    @Tuck

    David Carroll: …That seems awfully difficult to do, although the person will be put to significant hassle and expense defending the person’s citizenship.

    If he’s living in Syria fighting for ISIS (for instance) I doubt he’ll spend much time on it, and an arrest warrant really has no meaning there.

    The whole thing seems a somewhat pointless exercise, as it’s all covered under existing law.  Much of what they describe is treason, so convict him, if he comes back, and kill him.  Taking his citizenship away seems a bit pointless.

    If he’s on the battlefield fighting against us, kill him.  That’s a well-established remedy, as Cruz should know, although maybe his legal background is tripping him up here.

    • #11
  12. Richard Fulmer Inactive
    Richard Fulmer
    @RichardFulmer

    Striping Americans of their citizenship would not be pointless if it means they lose any rights under due process.  Rodin argues that we accord due process to all individuals charged by our legal system.  However, not all individuals who commit crimes against the U.S. are charged by our legal system – witness the prisoners in Guantanamo and the three terrorists who were water-boarded.

    Suppose that our troops capture two ISIS fighters: One is an American citizen and the other not.  Under current law, would they be treated the same?  Or would the citizen be brought to trial – either  in a U.S. court or by a military tribunal – while the non-citizen is just shipped to a POW camp?  If so, the exercise isn’t pointless.

    We saw what a slippery slope RICO was.  We were assured that it would be used only against drug dealers.  Yet it is now routinely used against everyone.

    • #12
  13. Tuck Inactive
    Tuck
    @Tuck

    anonymous: I have found that apart from those who specialise in nationality law (and they are few), not many lawyers know even its rudiments….

    That may well be the case, but what I was referring to here was the laws of war, which most lawyers never encounter in their practice.  They instead look to criminal remedies—as Cruz is doing here—which aren’t appropriate.

    Eugene Volokh covers the topic quite well here, and I’ll quote this one sentence which pretty well sums it up:

    “The question is, what difference, if any, does it make that he is a US citizen?  Answer, as a combatant  and therefore as a person subject to being targeted, none.  You can target him like any other combatant.”

    Personally, if an American citizen goes and joins ISIS, I’d much rather see justice meted out by the SEALs than the FBI trying to revoke his citizenship.

    Now if he’s captured on the battlefield, that’s a different story.   But a treason trial and an execution seems a perfectly satisfactory resolution.

    • #13
  14. Rodin Member
    Rodin
    @Rodin

    Richard Fulmer:Suppose that our troops capture two ISIS fighters: One is an American citizen and the other not. Under current law, would they be treated the same? Or would the citizen be brought to trial – either in a U.S. court or by a military tribunal – while the non-citizen is just shipped to a POW camp? If so, the exercise isn’t pointless.

    Rodin argues that we accord due process to all individuals charged by our legal system. However, not all individuals who commit crimes against the U.S. are charged by our legal system – witness the prisoners in Guantanamo and the three terrorists who were water-boarded.

    Richard, that is an excellent question. And although anonymous has highlighted the limits the Supreme Court has put on expatriating acts, it seems taking up arms against the US would remain one that the Supreme Court would uphold. Trips to Guantanamo by prisoners is never routed through US territories specifically to avoid US criminal law and rights attaching to these non-citizens. If an expatriation has officially occurred a former US citizen captured on the battlefield would be in the same status as any other combatant. The more interesting problem would be arguing that the presumptive citizen could be sent to Guantanamo because of the expatriating act without prior removal of citizenship.

    • #14

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